Second Department Reverses Mandamus Requiring Building Inspector to Issue a Permit to Construct a Dock

On October 17, 2018, the Supreme Court, Appellate Division, Second Department (“Second Department”) issued two (2) companion decisions arising out of three different attempts by Petitioners, Kleinknechts (“Petitioners”) to construct a dock at their waterfront property. Each of the attempts resulted in a Supreme Court litigation. As we blog about these cases today, no dock has been constructed despite a directive in 2013 that a permit be issued upon submission of the proper application!

In the first matter, the Second Department upheld a decision of the Village of Lloyd Harbor’s Zoning Board of Appeals (“ZBA”) denying certain variances requested by Petitioners to construct a dock along their waterfront property finding that the ZBA properly applied the five-factor test set forth in Village Law 7-712-b(3). Further, Petitioners’ expert testified that he had prepared an alternative completely code compliant plan. Since a code compliant dock plan provided a reasonable alternative for Petitioners to explore, the Second Department upheld the trial court’s dismissal of the underlying Article 78 proceeding stating that the “need” for the variances was self-created. In light of the ZBA’s proper application of Village Law, the ZBA’s denial was not arbitrary or capricious. See, Kleinknecht v. Brogan, 2018 WL 5020285 (Oct. 17, 2018)

In the second matter, and following denial of the above-mentioned variance application, the Appellate Division vacated a 2013 directive to the Building Inspector requiring the Building Inspector to issue a building permit to Petitioners for the alternative code compliant dock permit application. The Second Department stated “[m]andamus . . . is an extraordinary remedy that, by definition, is available only in limited circumstances.” “A party seeking mandamus must show a ‘clear legal right’ to [the] relief [requested]'” Here, no clear legal right existed. See, Kleinknecht v. Siino, 2018 WL 5020282 (2018).

Prior to 2013, Petitioners’ property was subject to an open space easement precluding construction of a dock at the property. Petitioners commenced an action seeking to have the open space easement extinguished. The trial court issued a judgment holding that the open space easement was no longer necessary and directed that the Building Inspector issue a building permit to Petitioners upon submission of the “required” application. The Village did not appeal the judgment.

As such, upon submission of a code compliant building permit application (as noted above an application for variances was denied and upheld), Petitioners sought an approved building permit. Although the Second Department held that the Building Inspector had no basis to deny issuing the permit based on the existence of the open space easement, the Second Department did vacate the 2013 trial court directive to issue a permit upon submission of the “required” application stating that the Village Code requires every Village building permit application be referred to the “Site and Building Permit Review Board” (“Review Board”). Finding that the trial court’s directive to the Building Inspector bypassed a necessary referral step to the Review Board, the Second Department ordered the Building Inspector to refer Petitioners’ application to the Review Board. The Second Department did not then direct the Building Inspector to issue a building permit to Petitioners if the Review Board approves that application..

Instead, the Second Department decision states “[t]he Building Inspector may issue a building permit only upon approval by the” Review Board. As a litigation and land use attorney, it has become painfully apparent that courts do not always weigh the import of the language used when crafting relief for the parties. Maybe it is of little consequence that the Second Department said that the Building Inspector “may” approve the building permit if approved by the Review Board. However, it would provide the Petitioners, and their attorney(s), greater comfort and certainty if the chosen words were “must” approve the building permit, instead of “may” approve the building permit.